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Ken Margolin
Ken Margolin
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A Medical Malpractice Claim Lost

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A couple of weeks ago, a Suffolk County Superior Court jury in Boston, rejected the claim of former New England Patriots offensive coordinator, Charlie Weis, that doctors botched his gastric bypass surgery. The defense verdict came at the end of the second trial of the case. The first jury hearing the case was deadlocked, leading to a mistrial. Weis had claimed that his surgeons allowed internal bleeding to continue for many hours, causing nerve damage. The loss by a popular, former local sports figure, illuminates some hard truths about medical malpractice cases.

The number one reality of medical malpractice cases for plaintiffs and their lawyers, is that they are difficult to win. Many jurors begin with a pro-doctor bias and suspicion of plaintiffs’ motives. Bias aside, most jurors will respect the judge’s “burden of persuasion” instruction, and weigh any doubts against the plaintiff. Given the complexity of many medical malpractice cases, a good defense lawyer can often create doubt. Another factor may have hurt Mr. Weis. Although he testified to ongoing pain and mobility problems (the operation took place in 2002), his injuries were not catastrophic. Any medical malpractice case that goes to trial is somewhat of a production. Some jurors will ask themselves why the plaintiff is going to the trouble if he has largely recovered from the alleged malpractice.

I wondered if there may have been an anti-obesity factor; i.e., people shouldn’t become so fat that they need bypass surgery. That may have been present, but as a blog by Fayetteville Injury Board member, Attorney Brent Adams, illustrates, juries can return sizeable plaintiff’s verdicts in gastric bypass cases. I never like reading about defense verdicts in medical malpractice cases. They are constant reminders, though, that plaintiffs’ attorneys must be rigorous in their selection of medmal cases.

For more information on this subject matter, please refer to the section on Medical Malpractice and Negligent Care.